Charles Carroll v. Gardner Denver, Inc.

Employee settled his claim against the employer arising from the 1986 injury for a lump sum of $\ 4,183.42, of which $\ 350.00 was for disfigurement. The receipt for compensation filed in that case with the Division of Workers' Compensation suggests that the parties based their settlement figure on an approximate 14.57 % permanent partial disability of the left hand.

On February 13, 2015, employee's medical expert, Dr. James Stuckmeyer, examined employee's left hand for purposes of providing an opinion in this case. At that time, Dr. Stuckmeyer rated a 30\% preexisting permanent partial disability of the left hand referable to the effects of the April 1986 work injury. The Second Injury Fund did not advance any expert medical opinion testimony providing a current rating for the April 1986 work injury. After careful consideration, we find that, as of October 1, 2012, employee was suffering from a 20 % permanent partial disability of the left hand. ${ }^{1}$

In December 1995, employee injured his left little finger at work. Employee settled his claim against the employer arising from the 1995 injury based upon an approximate permanent partial disability of 17.5 % of the left little finger. In his brief, employee concedes that he is not claiming that the Second Injury Fund has any liability for this injury, and that he does not ask the Commission to decide whether a little finger injury amounts to an injury affecting a "major extremity" for purposes of § 287.220 RSMo. Accordingly, we will not further discuss the December 1995 injury affecting the left little finger. ${ }^{2}$

The parties stipulated that employee sustained a compensable occupational disease arising out of and in the course of his employment with the employer on or about October 1, 2012. Specifically, employee sustained right cubital tunnel syndrome due to repetitive motion duties. On June 6, 2014, Dr. Clinton Walker performed a right cubital tunnel decompression surgery with anterior intramuscular transposition. Following surgery, employee underwent three months of physical therapy. He missed about two and a half weeks of work, and thereafter was on modified duty for about six weeks. Employer and employee entered a stipulation for compromise settlement based upon an approximate 17.5 % permanent partial disability of the right upper extremity at the level of the elbow.

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[^0]: ${ }^{1}$ As further explained below, we do not read the decision in Conley v. Treasurer, 999 S.W.2d 269 (Mo. App. 1999) to control our factual determination with regard to the nature and extent of disability employee suffered referable to his preexisting conditions at the time of the October 1, 2012, primary injury.

${ }^{2}$ Incidentally, we cannot endorse the administrative law judge's determination that the decision in Treasurer of Missouri-Custodian of the Second Injury Fund v. Witte, 414 S.W.3d 455 (Mo. 2013) would preclude our making a factual finding as to the overall disability affecting employee's left upper extremity as of October 1, 2012, simply because such overall disability may have resulted from multiple injuries. For example, for purposes of triggering Second Injury Fund liability, it would seem to make no difference whether a 20\% permanent partial disability of the body as a whole referable to the low back was the product of one or two prior injuries.

Employee continues to suffer daily pain referable to the primary injury, as well as numbness in his right arm, in his right little and ring fingers, and along the palm of his right hand. His right hand grip strength has weakened, and he drops things. His right hand will cramp at night, causing him to wake up. Employee takes Tylenol about twice a day for pain and stiffness in his right hand. The primary injury has made employee less efficient at work.

Dr. Stuckmeyer believes that the effects of the primary injury interact synergistically with the effects of employee's preexisting disability affecting the left hand, for which he deemed a 15\% "multiplicity" factor appropriate. After careful consideration, we find Dr. Stuckmeyer's opinion persuasive with regard to the issue of synergy. We find that the effects of the primary injury interact with the effects of employee's preexisting disability affecting the left hand to produce greater disability than the simple sum of disability referable to those conditions. We find that a 10\% load factor is appropriate to account for this synergistic interaction.

Section 287.220 RSMo creates the Second Injury Fund and controls the assessment of Second Injury Fund liability in "all cases of permanent disability where there has been previous disability." Section 287.220 provides as follows with respect to Second Injury Fund liability for enhanced permanent partial disability benefits:

If any employee who has a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed, and the preexisting permanent partial disability, if a body as a whole injury, equals a minimum of fifty weeks of compensation or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, according to the medical standards that are used in determining such compensation, receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree or percentage of disability, in an amount equal to a minimum of fifty weeks compensation, if a body as a whole injury or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, caused by the combined disabilities is substantially greater than that which would have resulted from the last injury, considered alone and of itself, and if the employee is entitled to receive compensation on the basis of the combined disabilities, the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability. After the compensation liability of the employer for the last injury, considered alone, has been determined by an administrative law judge or the commission, the degree or percentage of employee's disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined by that administrative law judge or by the commission and the degree or percentage of disability which existed prior to the last injury plus

the disability resulting from the last injury, if any, considered alone, shall be deducted from the combined disability, and compensation for the balance, if any, shall be paid out of a special fund known as the second injury fund, hereinafter provided for.

The administrative law judge determined that the decision in Conley v. Treasurer, 999 S.W.2d 269 (Mo. App. 1999) stands for the proposition that he was required (as a matter of law) to find (as a matter of fact) that employee's preexisting permanent partial disability affecting the left hand was, as of the date of the primary occupational disease injury on or about October 1, 2012, consistent with the 14.57 % rating set forth in a 1986 settlement. For this reason, he concluded that he was compelled to deny employee's claim herein against the Second Injury Fund, because employee's preexisting disability affecting the left upper extremity did not meet the applicable 15\% permanent partial disability threshold. We disagree, for the following reasons.

First, we conclude that Conley is distinguishable, because therein, the court addressed the issue whether an employee was bound by the permanent partial disability rating contained in a stipulation for compromise settlement entered in the claim arising from his last or primary injury. 999 S.W.2d at 271. In contrast, the question herein is whether employee is bound by the rating contained in a 1986 settlement as to the question of preexisting disability as of October 1, 2012. ${ }^{3}

Second, and along the same lines, the relevant inquiry under \S 287.220$ is not the nature and extent of disability employee suffered referable to his left hand in 1986, instead, it is the nature and extent of such disability as it existed on the date of the primary injury. See Lawrence v. Joplin R-VIII School Dist., 834 S.W.2d 789, 793 (Mo. App. 1992). This is evident in the statute's direction that we are to determine "the degree or percentage of employee's disability that is attributable to all injuries or conditions existing at the time the last injury was sustained[.]g 287.220 (emphasis added).

Stated simply, settlement terms regarding a prior injury do not preclude possible, additional disability involving the same body part, such as degeneration due to the normal aging process. For this reason, we conclude that although the 1986 settlement is relevant, it does not relieve us of our statutory duty to determine the degree or percentage of employee's disability attributable to all injuries or conditions existing as of October 1, 2012. ${ }^{4}$

Here, employee advanced the wholly uncontested